2016-00199696-CU-PO

Susan McIntyre Wilson vs. Cemo Commercial, Inc.

Nature of Proceeding: Motion for Summary Judgment

Filed By: Leonard, Susan F.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendant’s 17 Undisputed Material Facts and/or which of the objections to evidence will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendant Cemo Commercial, Inc.’s (“CCI”) motion for summary judgment is DENIED. Although the moving papers did satisfy CCI’s initial burden of production under Code of Civil Procedure §437c(p)(2), the evidence offered by the opposition is sufficient to establish at least one triable issue of material fact especially when this evidence is construed liberally as required by California law. (See, e.g., DiLoreto v. Bd. of

Education (1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903.)

Moving counsel failed to comply with CRC Rule 3.1110(b)(4).

Opposing counsel failed to comply with CRC Rule 3.1110(b)(3) and Rule 3.1113(f).

Both moving and opposing counsel failed to comply with CRC Rule 3.1116(c), requiring deposition transcripts cited as evidence be highlighted in some manner that calls attention to the cited testimony, and Rule 3.1350(g), requiring a single volume of evidence (including declarations) with a table of contents when the evidence exceeds 25 pages.

The court did not consider Plaintiff’s Response to CCI’s Reply since the Code of Civil Procedure does not permit such a filing.

Factual Background

This case arises out of a trip-and-fall incident which occurred in September 2014 while plaintiff was walking with a co-worker outside of her office building in El Dorado Hills. Plaintiff claims she tripped and fell over a “raised edge of the sidewalk” where she was walking. Plaintiff contends that this constituted a dangerous condition which created a duty to remedy or warn and that CCI failed to do so, causing plaintiff to suffer injuries and damages. The complaint alleges causes of action for general negligence and premises liability against CCI only.

Defendant now moves for summary judgment on the grounds that (1) the “Trivial Defect Doctrine” applies, (2) the defect which allegedly caused plaintiff’s fall was only 7/8th of an inch, and (3) the physical characteristics of the alleged defect and its surroundings reinforce the conclusion that this was a trivial defect for which there is no liability. As support for this motion, CCI offers a total of 17 Undisputed Material Facts (“UMF”).

In opposition, plaintiff primarily argues that there is a triable issue of fact relating to the “height differential of the subject defect” and explains that plaintiff herself has “consistently alleged the height differential to be approximately 2 inches, if measured from the bottom of the defect.” The opposition adds that while CCI emphasizes the fact plaintiff never “returned” to the accident site, plaintiff “inspect[ed]” the defect immediately after the fall and this makes her opinion on the height of the defect admissible under Evidence Code §800. Plaintiff further asserts that CCI’s only evidence showing the defect to be 7/8th of an inch is “a photograph with significant problems,” including (1) failing to depict the specific corner of the sidewalk on which plaintiff tripped, (2) not measuring “from the bottom of the defect, which is the crevice where Plaintiff’s shoe was stuck,” and (3) the uncertainty of the perspective from which the picture was taken. The opposition also insists a “strict tape measure approach” is inappropriate here because of the horizontal gap between the slabs, the shadows created by the unkempt foliage nearby, and the distractions created by “an ongoing snake problem on the property.” Finally, plaintiff maintains that 9 of CCI’s 17 UMF are “disputed” at least in part but she offered no Additional Material Facts of her own in an attempt to show the existence of any triable issue of material fact.

Objections to Evidence

Plaintiff (timely) filed no written objections to defendant’s evidence. To the extent plaintiff’s separate purports to assert objections to CCI’s UMF Nos. 4, 6, 13 and 17 on the grounds of “vague and ambiguous,” such objections are overruled because objections are properly directed solely at evidence and written objections must be made “separately from the other papers,” following the format prescribed in CRC Rule 3.1354(b).

CCI’s written objections to plaintiff’s evidence are overruled except as to Nos. 3-4, both of which are sustained. While CCI asserted a number of objections to plaintiff’s declaration in opposition based on it being “inconsistent” with her earlier deposition testimony, D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 and its progeny do not actually stand for the proposition that a declaration which is merely “inconsistent” with the witness’ earlier deposition testimony is inadmissible to create a triable issue of fact. Instead, such a declaration is precluded only where there has been a “clear and unequivocal admission” under oath by the witness. Thus, the court has overruled CCI’s objections on this ground except as to objection Nos. 3 and 4, where plaintiff did make unequivocal admissions which preclude her from contradicting them in her declaration. The court also notes that CCI’s objection No. 9 failed to quote or set forth the material objected to, as required by CRC Rule 3.1354(b)(3).

Analysis

Defendant’s Initial Burden of Production. The threshold question here is whether the moving papers are sufficient to satisfy CCI’s initial burden of production under Code of Civil Procedure §437c(p)(2). Coupled with the fact that opposition nowhere appears to argue otherwise and asserted no objections to CCI’s evidence, the court finds that CCI did meet its initial burden of production and has therefore successfully shifted to plaintiff the burden of producing admissible evidence which, when construed liberally, is sufficient to demonstrate the existence of at least one triable issue of material fact that mandates denial of summary judgment/adjudication. (See, e.g., DiLoreto, supra; Alvarez, supra.)

Plaintiff’s Burden of Production. As noted above, plaintiff contends there are triable issues of fact in connection with several of the UMF offered by CCI is support of summary judgment. The court will now consider the evidence offered in response to the UMF (to which no objections have been made and sustained) in order to determine whether the opposition has met its burden of production.

UMF 7 states that plaintiff claims her left foot caught on the raised slab at the far left side of the sidewalk, near the edge, with CCI citing as support plaintiff’s own deposition and the photograph marked as Exhibit G to that transcript. In response to UMF 7, the opposition points out that during her deposition plaintiff testified Exhibit G does not actually show the raised corner on which she tripped, being is obscured by the level device in the photograph. Additionally, the opposition cites Paragraph 5 of plaintiff’s declaration in opposition, which avers that none of the photographs included in CCI’s motion depict the “protruding corner on which I tripped” and that the tape measure in the photograph (purporting to show a discrepancy of 7/8th of an inch) is not located in the area where plaintiff actually fell. The court holds that when construed liberally, the evidence cited by the opposition is enough to create a triable issue of material fact which precludes summary judgment on the grounds advanced by CCI.

UMF 9 asserts that plaintiff did not see the raised edge of the sidewalk because she was not watching where she was walking but this UMF is not undisputed either. While plaintiff testified she was not watching her feet, she was “scanning the area” where she was walking and this evidence, when liberally construed, establishes the existence of a triable issue relative to UMF 9.

UMF 11 states that prior to plaintiff’s fall, CCI had received no complaints about the sidewalk at issue and no reports or notice of similar incidents in the area. However, in response, plaintiff has offered the declaration of building consultant who has opined that height differential between the two slabs where plaintiff fell formed over a long period of time such that a competent property manager conducting reasonable inspection of the premises would have discovered the defect and would have been able to eliminate it easily with limited expense. Consequently, while there may be no dispute over CCI’s lack of actual knowledge of the alleged defect, there is a triable issue of fact on the question of whether CCI had constructive notice.

According to UMF 12, the height differential of the sidewalk where plaintiff fell was approximately 7/8th of an inch but plaintiff’s declaration in opposition estimates that differential was approximately 1½-2 inches high. As CCI’s objections to this portion of plaintiff’s declaration have been overruled, the court finds the evidence offered in opposition is sufficient to create a triable issue of material fact relative to the size of the height differential where plaintiff fell and this alone mandates denial of summary judgment on the specific grounds advanced in CCI’s notice of motion. Reinforcing this conclusion is Paragraph 5 of plaintiff’s declaration in opposition, averring that none of the photographs included in CCI’s motion depict the “protruding corner on which I tripped” and that the tape measure in the photograph (purporting to show a discrepancy of 7/8th of an inch) is not located in the area where plaintiff actually fell.

Conclusion

Based on the foregoing, plaintiff has satisfied her burden of producing evidence which when construed liberally is sufficient to demonstrate several triable issues of material fact not only with respect to UMF Nos. 7, 9, 11 and 12 but also the application of the “Trivial Defect Doctrine” on which CCI primarily relies. Therefore, the present motion for summary judgment must be denied as a matter of law.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)